Chapter XVI: CAUSES WHICH MITIGATE THE TYRANNY OF THE
MAJORITY IN THE UNITED STATES

ABSENCE OF CENTRALIZED ADMINISTRATION.
The national majority does not pretend to do everything--Is obliged
to employ the town and county magistrates to execute its sovereign will.

I HAVE already pointed out the distinction between a centralized
government and a centralized administration. The former exists in
America, but the latter is nearly unknown there. If the directing
power of the American communities had both these instruments of
government at is disposal and united the habit of executing its
commands to the right of commanding; if, after having established
the general principles of government, it descended to the details
of their application; and if, having regulated the great
interests of the country, it could descend to the circle of individual
interests, freedom would soon be banished from the New
World.

But in the United States the majority, which so frequently
displays the tastes and the propensities of a despot, is still
destitute of the most perfect instruments of tyranny.

In the American republics the central government has never
as yet busied itself except with a small number of objects,
sufficiently prominent to attract its attention. The secondary
affairs of society have never been regulated by its authority;
and nothing has hitherto betrayed its desire of even interfering
in them. The majority has become more and more absolute, but has
not increased the prerogatives of the central government; those
great prerogatives have been confined to a certain sphere; and
although the despotism of the majority may be galling upon one
point, it cannot be said to extend to all. However the
predominant party in the nation may be carried away by its
passions, however ardent it may be in the pursuit of its
projects, it cannot oblige all the citizens to comply with its
desires in the same manner and at the same time throughout the
country. When the central government which represents
that majority has issued a decree, it must entrust the
execution of its will to agents over whom it frequently has no
control and whom it cannot perpetually direct. The townships,
municipal bodies, and counties form so many concealed
breakwaters, which check or part the tide of popular
determination. If an oppressive law were passed, liberty would
still be protected by the mode of executing that law; the
majority cannot descend to the details and what may be called the
puerilities of administrative tyranny. It does not even imagine
that it can do so, for it has not a full consciousness of its
authority. It knows only the extent of its natural powers, but is
unacquainted with the art of increasing them.

This point deserves attention; for if a democratic republic,
similar to that of the United States, were ever founded in a
country where the power of one man had previously established a
centralized administration and had sunk it deep into the habits
and the laws of the people, I do not hesitate to assert that in
such a republic a more insufferable despotism would prevail than
in any of the absolute monarchies of Europe; or, indeed, than any
that could be found on this side of Asia.

THE TEMPER OF THE LEGAL PROFESSION IN THE UNITED STATES, AND HOW
IT SERVES AS A COUNTERPOISE TO DEMOCRACY.

Utility of ascertaining what are the natural instincts of the legal profession--These men
are to act a prominent part in future society--How the peculiar
pursuits of lawyers give an aristocratic turn to their
ideas--Accidental causes that may check this tendency--Ease with
which the aristocracy coalesces with legal men--Use of lawyers to
a despot--The profession of the law constitutes the only
aristocratic element with which the natural elements of democracy
will combine--Peculiar causes which tend to give an aristocratic
turn of mind to English and American lawyers--The aristocracy of
America is on the bench and at the bar--Influence of lawyers upon
American society--Their peculiar magisterial spirit affects the
legislature, the administration, and even the people.

IN visiting the Americans and studying their laws, we perceive
that the authority they have entrusted to members of the legal
profession, and the influence; that these individuals exercise in
the government, are the most powerful existing security against
the excesses of democracy. This effect seems to me to result from
a general cause, which it is useful to investigate, as it may be
reproduced elsewhere.

The members of the legal profession have taken a part in all
the movements of political society in Europe for the last five
hundred years. At one time they have been the instruments of the
political authorities, and at another they have succeeded in
converting the political authorities into their instruments. In
the Middle Ages they afforded a powerful support to the crown;
and since that period they have exerted themselves effectively to
limit the royal prerogative. In England they have contracted a
close alliance with the aristocracy; in France they have shown
themselves its most dangerous enemies. Under all these
circumstances have the members of the legal profession been
swayed by sudden and fleeting impulses, or have they been more or
less impelled by instincts which are natural to them and which
will always recur in history? I am incited to this investigation,
for perhaps this particular class of men will play a prominent
part in the political society that is soon to be created.

Men who have made a special study of the laws derive from
this occupation certain habits of order, a taste for formalities,
and a kind of instinctive regard for the regular connection of
ideas, which naturally render them very hostile to the
revolutionary spirit and the unreflecting passions of the
multitude.

The special information that lawyers derive from their
studies ensures them a separate rank in society, and they
constitute a sort of privileged body in the scale of intellect.
This notion of their superiority perpetually recurs to them in
the practice of their profession: they are the masters of a
science which is necessary, but which is not very generally
known; they serve as arbiters between the citizens; and the habit
of directing to their purpose the blind passions of parties in
litigation inspires them with a certain contempt for the judgment
of the multitude. Add to this that they naturally constitute a
body; not by any previous understanding, or by an agreement that
directs them to a common end; but the analogy of their studies
and the uniformity of their methods connect their minds as a
common interest might unite their endeavors.

Some of the tastes and the habits of the aristocracy may
consequently be discovered in the characters of lawyers. They
participate in the same instinctive love of order and
formalities; and they entertain the same repugnance to the
actions of the multitude, and the same secret contempt of the
government of the people. I do not mean to say that the natural
propensities of lawyers are sufficiently strong to sway them
irresistibly; for they, like most other} men, are governed by
their private interests, and especially by the interests of the moment.

In a state of society in which the members of the legal
profession cannot hold that rank in the political world which
they enjoy in private life, we may rest assured that they will be
the foremost agents of revolution. But it must then be asked
whether the cause that then induces them to innovate and destroy
results from a permanent disposition or from an accident. It is
true that lawyers mainly contributed to the overthrow of the
French monarchy in 1789; but it remains to be seen whether they
acted thus because they had studied the laws or because they were
prohibited from making them.

Five hundred years ago the English nobles headed the people
and spoke in their name; at the present time the aristocracy sup-
ports the throne and defends the royal prerogative. But notwith-
standing this, aristocracy has its peculiar instincts and
propensities. We must be careful not to confound isolated
members of a body with the body itself. In all free governments,
of whatever form they may be, members of the legal profession
will be found in the front ranks of all parties. The same remark
is also applicable to the aristocracy; almost all the democratic
movements that have agitated the world have been directed by
nobles. A privileged body can never satisfy the ambition of all
its members: it has always more talents and more passions than it
can find places to employ, so that a considerable number of
individuals are usually to be met with who are inclined to attack
those very privileges which they cannot soon enough turn to their
own account.

I do not, then, assert that all the members of the legal
profession are at all times the friends of order and the
opponents of innovation, but merely that most of them are usually
so. In a community in which lawyers are allowed to occupy without
opposition that high station which naturally belongs to them,
their general spirit will be eminently conservative and
anti-democratic. When an aristocracy excludes the leaders of that
profession from its ranks, it excites enemies who are the more
formidable as they are independent of the nobility by their
labors and feel themselves to be their equals in intelligence
though inferior in opulence and power. But whenever an
aristocracy consents to impart some of its privileges to
these same individuals, the two classes coalesce very
readily and assume, as it were, family interests.

I am in like manner inclined to believe that a monarch will
always be able to convert legal practitioners into the most
serviceable instruments of his authority. There is a far greater
affinity between this class of persons and the executive power
than there is between them and the people, though they have often
aided to overturn the former; just as there is a greater natural
affinity between the nobles and the monarch than between the
nobles and the people, although the higher orders of society have
often, in concert with the lower classes, resisted the
prerogative of the crown.

Lawyers are attached to public order beyond every other
consideration, and the best security of public order is authority.
It must not be forgotten, also, that if they prize freedom much,
they generally value legality still more: they are less afraid of
tyranny than of arbitrary power; and, provided the legislature
undertakes of itself to deprive men of their independence, they
are not dissatisfied.

I am therefore convinced that the prince who, in presence of
an encroaching democracy, should endeavor to impair the judicial
authority in his dominions, and to diminish the political influence
of lawyers, would commit a great mistake: he would let slip the
substance of authority to grasp the shadow. He would act more
wisely in introducing lawyers into the government; and if he
entrusted despotism to them under the form of violence, perhaps
he would find it again in their hands under the external features
of justice and law.

The government of democracy is favorable to the political
power of lawyers; for when the wealthy, the noble, and the prince
are excluded from the government, the lawyers take possession of
it, in their own right, as it were, since they are the only men
of information and sagacity, beyond the sphere of the people, who
can be the object of the popular choice. If, then, they are led
by their tastes towards the aristocracy and the prince, they are
brought in contact with the people by their interests. They like
the government of democracy without participating in its
propensities and without imitating its weaknesses; whence they
derive a twofold authority from it and over it. The people in
democratic states do not mistrust the members of the legal
profession, because it is known that they are interested to
serve the popular cause; and the people listen to them
without irritation, because they do not attribute to them
any sinister designs. The lawyers do not, indeed, wish to
overthrow the institutions of democracy, but they
constantly endeavor to turn it away from its real direction by
means that are foreign to its nature. Lawyers belong to the
people by birth and interest, and to the aristocracy by habit and
taste; they may be looked upon as the connecting link between the
two great classes of society.

The profession of the law is the only aristocratic element
that can be amalgamated without violence with the natural
elements of democracy and be advantageously and permanently
combined with them. I am not ignorant of the defects inherent in
the character of this body of men; but without this admixture of
lawyer-like sobriety with the democratic principle, I question
whether democratic institutions could long be maintained; and I
cannot believe that a republic could hope to exist at the present
time if the influence of lawyers in public business did not
increase in proportion to the power of the people.

This aristocratic character, which I hold to be common to
the legal profession, is much more distinctly marked in the
United States and in England than in any other country. This
proceeds not only from the legal studies of the English and
American lawyers, but from the nature of the law and the position
which these interpreters of it occupy in the two countries. The
English and the Americans have retained the law of precedents;
that is to say, they continue to found their legal opinions and
the decisions of their courts upon the opinions and decisions of
their predecessors. In the mind of an English or American lawyer
a taste and a reverence for what is old is almost always united
with a love of regular and lawful proceedings.

This predisposition has another effect upon the character of
the legal profession and upon the general course of society. The
English and American lawyers investigate what has been done; the
French advocate inquires what should have been done; the former
produce precedents, the latter reasons. A French observer is
surprised to hear how often an English or an American lawyer
quotes the opinions of others and how little he alludes to his
own, while the reverse occurs in France. There the most trifling
litigation is never conducted without the introduction of an entire
system of ideas peculiar to the counsel employed; and the fundamental
principles of law are discussed in order to obtain a rod of land
by the decision of the court. This abnegation of his own opinion
and this implicit deference to the opinion of his forefathers,
which are common to the English and American lawyer, this
servitude of thought which he is obliged to profess, necessarily
give him more timid habits and more conservative inclinations in
England and America than in France.

The French codes are often difficult to comprehend, but they
can be read by everyone; nothing, on the other hand, can be more
obscure and strange to the uninitiated than a legislation founded
upon precedents. The absolute need of legal aid that is felt in
England and the United States, and the high opinion that is
entertained of the ability of the legal profession, tend to
separate it more and more from the people and to erect it into a
distinct class. The French lawyer is simply a man extensively
acquainted with the statutes of his country; but the English or
American lawyer resembles the hierophants of Egypt, for like them
he is the sole interpreter of an occult science.

The position that lawyers occupy in England and America
exercises no less influence upon their habits and opinions. The
English aristocracy, which has taken care to attract to its
sphere whatever is at all analogous to itself, has conferred a
high degree of importance and authority upon the members of the
legal profession. In English society, lawyers do not occupy the
first rank, but they are contented with the station assigned to
them: they constitute, as it were, the younger branch of the
English aristocracy; and they are attached to their elder
brothers, although they do not enjoy all their privileges. The
English lawyers consequently mingle the aristocratic tastes and
ideas of the circles in which they move with the aristocratic
interests of their profession.

And, indeed, the lawyer-like character that I am endeavoring
to depict is most distinctly to be met with in England: there
laws are esteemed not so much because they are good as because
they are old; and if it is necessary to modify them in any
respect, to adapt them to the changes that time operates in
society, recourse is had to the most inconceivable subtleties in
order to uphold the traditionary fabric and to maintain that
nothing has been done which does not square with the intentions
and complete the labors of former generations. The very
individuals who conduct these changes disclaim any desire for
innovation and had rather resort to absurd expedients than plead
guilty to so great a crime. This spirit appertains more especially
to the English lawyers; they appear indifferent to the real
meaning of what they treat, and they direct all their attention to
the letter, seeming inclined to abandon reason and humanity rather
than to swerve one tittle from the law. English legislation may be
compared to the stock of an old tree upon which lawyers have
engrafted the most dissimilar shoots in the hope that, although their
fruits may differ, their foliage at least will be confused with the
venerable trunk that supports them all.

In America there are no nobles or literary men, and the
people are apt to mistrust the wealthy; lawyers consequently form
the highest political class and the most cultivated portion of
society. They have therefore nothing to gain by innovation, which
adds a conservative interest to their natural taste for public
order. If I were asked where I place the American aristocracy, I
should reply without hesitation that it is not among the rich,
who are united by no common tie, but that it occupies the
judicial bench and the bar.

The more we reflect upon all that occurs in the United
States the more we shall be persuaded that the lawyers, as a
body, form the most powerful, if not the only, counterpoise to
the democratic element. In that country we easily perceive how
the legal profession is qualified by its attributes, and even by
its faults, to neutralize the vices inherent in popular
government. When the American people are intoxicated by passion
or carried away by the impetuosity of their ideas, they are
checked and stopped by the almost invisible influence of their
legal counselors. These secretly oppose their aristocratic
propensities to the nation's democratic instincts, their
superstitious attachment to what is old to its love of novelty,
their narrow views to its immense designs, and their habitual
procrastination to its ardent impatience.

The courts of justice are the visible organs by which the
legal profession is enabled to control the democracy. The judge
is a lawyer who, independently of the taste for regularity and
order that he has contracted in the study of law, derives an
additional love of stability from the inalienability of his own
functions. His legal attainments have already raised him to a distinguished rank
among his fellows; his political power completes the distinction
of his station and gives him the instincts of the privileged
classes.

Armed with the power of declaring the laws to be unconstitutional,1
the American magistrate perpetually interferes in political affairs.
He cannot force the people to make laws, but at least he
can oblige them not to disobey their own enactments
and not to be inconsistent with themselves. I am aware that a
secret tendency to diminish the judicial power exists in the
United States; and by most of the constitutions of the several
states the government can, upon the demand of the two houses of
the legislature, remove judges from their station. Some other
state constitutions make the members of the judiciary elective,
and they are even subjected to frequent re-elections. I venture
to predict that these innovations will sooner or later be
attended with fatal consequences; and that it will be found out
at some future period that by thus lessening the independence of
the judiciary they have attacked not only the judicial power, but
the democratic republic itself.

It must not be supposed, moreover, that the legal spirit is
con fined in the United States to the courts of justice; it
extends far beyond them. As the lawyers form the only enlightened
class whom the people do not mistrust, they are naturally called
upon to occupy most of the public stations. They fill the
legislative assemblies and are at the head of the administration;
they consequently exercise a powerful influence upon the
formation of the law and upon its execution. The lawyers are
obliged, however, to yield to the current of public opinion,
which is too strong for them to resist; but it is easy to find
indications of what they would do if they were free to act. The
Americans, who have made so many innovations in their political
laws, have introduced very sparing alterations in their civil
laws, and that with great difficulty, although many of these laws
are repugnant to their social condition. The reason for this is
that in matters of civil law the majority are obliged to defer to
the authority of the legal profession, and the American lawyers
are disinclined to innovate when they are left to their own
choice.

It is curious for a Frenchman to hear the complaints that are
made in the United States against the stationary spirit of legal
men and their prejudices in favor of existing institutions.

The influence of legal habits extends beyond the precise
limits I have pointed out. Scarcely any political question arises
in the United States that is not resolved, sooner or later, into
a judicial question. Hence all parties are obliged to borrow, in
their daily controversies, the ideas, and even the language,
peculiar to judicial proceedings As most public men are or have
been legal practitioners, they introduce the customs and
technicalities of their profession into the management of public
affairs. The jury extends this habit to all classes. The language
of the law thus becomes, in some measure, a vulgar tongue; the
spirit of the law, which is produced in the schools and courts of
justice, gradually penetrates beyond their walls into the bosom
of society, where it descends to the lowest classes, so that at
last the whole people contract the habits and the tastes of the
judicial magistrate. The lawyers of the United States form a
party which is but little feared and scarcely perceived, which
has no badge peculiar to itself, which adapts itself with great
flexibility to the exigencies of the time and accommodates itself
without resistance to all the movements of the social body. But
this party extends over the whole community and penetrates into
all the classes which compose it; it acts upon the country
imperceptibly, but finally fashions it to suit its own purposes.

TRIAL BY JURY IN THE UNITED STATES CONSIDERED AS A POLITICAL
INSTITUTION

Trial by jury, which is one of the forms of the
sovereignty of the people, ought to be compared with the other
which establish that sovereignty--Composition of the in the
United States--Effect of trial by jury upon the national
character--lt educates the people--How it tends to establish the
influence of the magistrates and to extend the legal spirit among
the people.

SINCE my subject has led me to speak of the administration of
justice in the United States, I will not pass over it without
referring to the institution of the jury. Trial by jury may be
considered in two separate points of view: as a judicial, and as
a political institution. If it was my purpose to inquire how far
trial by jury, especially in civil cases, ensures a good
administration of justice I admit that its utility might be
contested. As the jury was first established when society was in
its infancy and when courts of justice merely decided simple
questions of fact, it is not an easy task to adapt it to the wants of
a highly civilized community when the mutual relations of men
are multiplied to a surprising extent and have assumed an enlightened
and intellectual character.2

My present purpose is to consider the jury as a political
institution; any other course would divert me from my subject. Of
trial by jury considered as a judicial institution I shall here
say but little. When the English adopted trial by jury, they were
a semi-barbarous people; they have since become one of the most
enlightened nations of the earth, and their attachment to this
institution seems to have increased with their increasing
cultivation. They have emigrated and colonized every part of the
habitable globe; some have formed colonies, others independent
states; the mother country has maintained its monarchical
constitution; many of its offspring have founded powerful
republics; but everywhere they have boasted of the privilege of
trial by jury.3 They have established it, or hastened to
re-establish it, in all their settlements. A judicial institution
which thus obtains the suffrages of a great people for so long a
series of ages, which is zealously reproduced at every stage of
civilization, in all the climates of the earth, and under every
form of human government, cannot be contrary to the spirit of
justice.4

But to leave this part of the subject. It would be a very
narrow view to look upon the jury as a mere judicial institution;
for however great its influence may be upon the decisions of the
courts, it is still greater on the destinies of society at large.
The jury is, above all, a political institution, and it must be
regarded in this light in order to be duly appreciated.

By the jury I mean a certain number of citizens chosen by
lot and invested with a temporary right of judging. Trial by
jury, as applied to the repression of crime, appears to me an
eminently republican element in the government, for the following
reasons.

The institution of the jury may be aristocratic or
democratic, according to the class from which the jurors are
taken; but it always preserves its republican character, in that
it places the real direction of society in the hands of the
governed, or of a portion of the governed, and not in that of the
government. Force is never more than a transient element of
success, and after force comes the notion of right. A government
able to reach its enemies only upon a field of battle would soon
be destroyed. The true sanction of political laws is to be found
in penal legislation; and if that sanction is wanting, the law
will sooner or later lose its cogency. He who punishes the
criminal is therefore the real master of society. Now, the
institution of the jury raises the people itself, or at least a
class of citizens, to the bench of judges. The institution
------
institution, many arguments might be brought forward, and among
others the following:

In proportion as you introduce the jury into the business of
the courts you are enabled to diminish the number of judges,
which is a great advantage. When judges are very numerous, death
is perpetually thinning the ranks of the judicial functionaries
and leaving places vacant for new-comers. The ambition of the
magistrates is therefore continually excited, and they are
naturally made dependent upon the majority or the person who
nominates to vacant offices; the officers of the courts then
advance as do the officers of an army. This state of things is
entirely contrary to the sound administration of justice and to
the intentions of the legislator. The office of a judge is made
inalienable in order that he may remain independent, but of what
advantage is it that his independence should be protected if he
be tempted to sacrifice it of his own accord? When judges are
very numerous many of them must necessarily be incapable; for a
great magistrate is a man of no common powers: I do not know if a
half-enlightened tribunal is not the worst of all combinations
for attaining those ends which underlie the establishment of
courts of justice. For my own part, I had rather submit the
decision of a case to ignorant jurors directed by a skillful
judge than to judges a majority of whom are imperfectly
acquainted with jurisprudence and with the laws.
of the jury consequently invests the people, or that class of
citizens, with the direction of society.5

In England the jury is selected from the aristocratic
portion of the nation; the aristocracy makes the laws, applies
the laws, and punishes infractions of the laws; 6 everything is
established upon a consistent footing, and England may with truth
be said to constitute an aristocratic republic. In the United
States the same system is applied to the whole people. Every
American citizen is both an eligible and a legally qualified
voter.7 The jury system as it is understood in America appears to
me to be as direct and as extreme a consequence of the
sovereignty of the people as universal suffrage. They are two
instruments of equal power, which contribute to the supremacy of
the majority. All the sovereigns who have chosen to govern by
their own authority, and to direct society instead of obeying its
directions, have destroyed or enfeebled the institution of the
jury. The Tudor monarchs sent to prison jurors who refused to
convict, and Napoleon caused them to be selected by his agents.

However clear most of these truths may seem to be, they do
not command universal assent; and in France, at least, trial by
jury is still but imperfectly understood. If the question arises
as to the proper qualification of jurors, it is confined to a
discussion of the intelligence and knowledge of the citizens who
may be returned, as if the jury was merely a judicial
institution. This appears to me the least important part of the
subject. The jury is pre-eminently a political institution; it
should be regarded as one form of the sovereignty of the people:
when that sovereignty is repudiated, it must be rejected, or it
must be adapted to the laws by which that sovereignty is
established. The jury is that portion of the nation to which the
execution of the laws is entrusted, as the legislature is that
part of the nation which makes the laws; and in order that
society may be governed in a fixed and uniform
manner, the list of citizens qualified to serve on juries must
increase and diminish with the list of electors. This I hold to
be the point of view most worthy of the attention of the
legislator; all that remains is merely accessory.

I am so entirely convinced that the jury is pre-eminently a
political institution that I still consider it in this light when
it is applied in civil causes. Laws are always unstable unless
they are founded upon the customs of a nation: customs are the
only durable and resisting power in a people. When the jury is
reserved for criminal offenses, the people witness only its
occasional action in particular cases; they become accustomed to
do without it in the ordinary course of life, and it is
considered as an instrument, but not as the only instrument, of
obtaining justice.8

When, on the contrary, the jury acts also on civil causes,
its application is constantly visible; it affects all the
interests of the community; everyone co-operates in its work: it
thus penetrates into all the usages of life, it fashions the
human mind to its peculiar forms, and is gradually associated
with the idea of justice itself.

The institution of the jury, if confined to criminal causes,
is always in danger; but when once it is introduced into civil
proceedings, it defies the aggressions of time and man. If it had
been as easy to remove the jury from the customs as from the laws
of England, it would have perished under the Tudors, and the
civil jury did in reality at that period save the liberties of
England. In whatever manner the jury be applied, it cannot fail
to exercise a powerful influence upon the national character; but
this influence is prodigiously increased when it is introduced
into civil causes. The jury, and more especially the civil jury,
serves to communicate the spirit of the judges to the minds of
all the citizens and this spirit, with the habits which attend
it, is the soundest preparation for free institutions. It imbues
all classes with a respect for the thing judged and with the
notion of right. If these two elements be removed, the love of
independence becomes a mere destructive passion. It teaches men
to practice equity; every man learns to judge his neighbor as he
would himself be judged. And this is especially true of the jury
in civil causes, for while the number of persons who have reason
to apprehend a criminal prosecution is small, everyone is liable
to have a lawsuit. The jury teaches every man not to recoil
before the responsibility of his own actions and impresses him
with that manly confidence without which no political virtue can
exist. It invests each citizen with a kind of magistracy; it makes
them all feel the duties which they are bound to discharge towards
society and the part which they take in its government. By obliging
men to turn their attention to other affairs than their own, it rubs
off that private selfishness which is the rust of society.

The jury contributes powerfully to form the judgment and to
increase the natural intelligence of a people; and this, in my
opinion, is its greatest advantage. It may be regarded as a
gratuitous public school, ever open, in which every juror learns
his rights, enters into daily communication with the most learned
and enlightened members of the upper classes, and becomes
practically acquainted with the laws, which are brought within
the reach of his capacity by the efforts of the bar, the advice
of the judge, and even the passions of the parties. I think that
the practical intelligence and political good sense of the
Americans are mainly attributable to the long use that they have
made of the jury in civil causes.

I do not know whether the jury is useful to those who have
lawsuits, but I am certain it is highly beneficial to those who
judge them; and I look upon it as one of the most efficacious
means for the education of the people which society can employ.

What I have said applies to all nations, but the remark I am
about to make is peculiar to the Americans and to democratic com-
munities. I have already observed that in democracies the members
of the legal profession and the judicial magistrates constitute
the only aristocratic body which can moderate the movements of
the people. This aristocracy is invested with no physical power;
it exercises its conservative influence upon the minds of men;
and the most abundant source of its authority is the institution
of the civil jury. In criminal causes, when society is contending
against a single man, the jury is apt to look upon the judge as
the passive instrument of social power and to mistrust his
advice. Moreover, criminal causes turn entirely upon simple
facts, which common sense can readily appreciate; upon this
ground the judge and the jury are equal. Such is not the case,
however, in civil causes; then the judge appears as a
disinterested arbiter between the conflicting passions of the
parties. The jurors look up to him with confidence and listen
to him with respect, for in this instance, his intellect entirely
governs theirs. It is the judge who sums up the various
arguments which have wearied their memory, and who
guides them through the devious course of the proceedings; he
points their attention to the exact question of fact that they
are called upon to decide and tells them how to answer the
question of law. His influence over them is almost unlimited.

If I am called upon to explain why I am but little moved by
the arguments derived from the ignorance of jurors in civil
causes, I reply that in these proceedings, whenever the question
to be solved is not a mere question of fact, the jury has only
the semblance of a judicial body. The jury only sanctions the
decision of the judge; they sanction this decision by the
authority of society which they represent, and he by that of
reason and of law.9

In England and in America the judges exercise an influence
upon criminal trials that the French judges have never possessed.
The reason for this difference may easily be discovered; the English
and American magistrates have established their authority in
civil causes and only transfer it afterwards to tribunals of another
kind, where it was not first acquired. In some cases, and
they are frequently the most important ones, the American judges
have the right of deciding causes alone.10 On these occasions
they are accidentally placed in the position that the French
judges habitually occupy, but their moral power is much greater;
they are still surrounded by the recollection of the jury, and
their judgment has almost as much authority as the voice of the
community represented by that institution. Their influence
extends far beyond the limits of the courts; in the recreations
of private life, as well as in the turmoil of public business, in
public, and in the legislative assemblies, the American judge is
constantly surrounded by men who are accustomed to regard his
intelligence as superior to their own; and after having exercised
his power in the decision of causes, he continues to influence
the habits of thought, and even the characters, of those who
acted with him in his official capacity.

The jury, then, which seems to restrict the rights of the
judiciary, does in reality consolidate its power; and in no
country are the judges so powerful as where the people share
their privileges.

Footnotes

1 See Chapter VI, on "The Judicial Power in the United States."
2 The consideration of trial by jury as a judicial
institution, and the appraisal of its effects in the United
States, together with an inquiry into the manner in which the
Americans have used it, would suffice to form a book, and a book
very interesting to France. One might trace therein, for example,
what parts of the American system pertaining to the jury might be
introduced among us, and by what steps. The state of Louisiana
would throw the most light upon the subject, as it has a mingled
population of French and English. The two systems of law, as well
as the two nations, are there found side by side and are
gradually combining with each other. The most useful books to
consult would be the Digeste des Lois de la LouisĦane; and the
Trait sur les Rgles des Actions civiles, printed in French and
English at New Orleans, in 1830, by Buisson. This book has a
special advantage, it presents, for Frenchmen, an exact and an
authentic glossary of English legal terms. The language of law is
everywhere different from that of the people, a fact particularly
true of the English.
3 All the English and American jurists are unanimous on this
point. Mr. Story, Justice of the Supreme Court of the United
States, speaks, in his Commentaries on the Constitution, of the
advantages of trial by jury in civil cases: "The inestimable
privilege of a trial by jury in civil cases," says he, "a privilege
scarcely inferior to that in criminal cases, which is
counted by all persons to be essential to political and civil
liberty." ( Story, Book III, Ch. 38. )
4 If it were our object to establish the utility of the jury
as a judicial
5 An important remark must, however, be made. Trial by jury
does unquestionably invest the people with a general control over
the actions of the citizens, but it does not furnish means of
exercising this control in all cases or with an absolute
authority. When an absolute monarch has the right of trying
offenses by his representatives, the fate of the prisoner is, as
it were, decided beforehand. But even if the people were
predisposed to convict, the composition and the
non-responsibility of the jury would still afford some chances
favorable to the protection of innocence
6 See Appendix Q.
7 See Appendix R.
8 This is unequivocally true since the jury is employed only
in certain criminal cases.
9 See Appendix S.
10 The Federal judges decide almost always only such
questions as touch directly the government of the country.
It is especially by means of the jury in civil causes that the
American magistrates imbue even the lower classes of society with
the spirit of their profession. Thus the jury, which is the most
energetic means of making the people rule, is also the most
efficacious means of teaching it how to rule well.